Khanna v. Royal College of Dental Surgeons of Ontario et al. [Indexed as: Khanna v. Royal College of Dental Surgeons of Ontario]

47 O.R. (3d) 95

[2000] O.J. No. 946

No. C32429

Ontario Court of Appeal

Morden, Finlayson and Abella JJ.A.

March 27, 2000

*Application for leave to appeal to the Supreme Court of

Canada dismissed with costs September 14, 2000 (L'Heureux-Dubé,

Bastarache and LeBel JJ.). S.C.C. Bulletin, 2000, p. 1493.

Professions -- Dentists -- Discipline -- Allegations of professional misconduct on part of plaintiff dentist referred to Discipline Committee of College of Dental Surgeons -- When disciplinary proceedings terminated, plaintiff bringing action against College and various individuals alleging breach of duty of fairness and rules of natural justice, negligence, malicious prosecution, conspiracy, interference with economic relations and abuse of process -- Defendants including lawyer retained by College to represent College in disciplinary proceedings -- Lawyer immunized from liability under s. 38 of Registered Health Professions Act -- Statement of claim struck out against lawyer -- Plaintiff's appeal allowed -- Novelty of cause of action not grounds for striking claim against lawyer -- Claim of civil conspiracy should stand -- Registered Health Professions Act, 1991, S.O. 1991, c. 18, s. 38.

Professions -- Barristers and solicitors -- Malicious prosecution -- Allegations of professional misconduct on part of plaintiff dentist referred to Discipline Committee of College of Dental Surgeons -- When disciplinary proceedings terminated, plaintiff bringing action against College and various individuals alleging breach of duty of fairness and rules of natural justice, negligence, malicious prosecution, conspiracy, interference with economic relations and abuse of process -- Defendants including lawyer retained by College to represent College in disciplinary proceedings -- Lawyer immunized from liability under s. 38 of Registered Health Professions Act -- Statement of claim struck out against lawyer -- Plaintiff's appeal allowed -- Novelty of cause of action not grounds for striking claim against lawyer -- Claim of civil conspiracy should stand -- Registered Health Professions Act, 1991, S.O. 1991, c. 18, s. 38.

NOTE: An appeal of the judgment of the Superior Court of Justice of Ontario (Cumming J.), reported at 1999 14802 (ON SC), 44 O.R. (3d) 535, to the Court of Appeal for Ontario was allowed on March 27, 2000. The endorsement of the court was as follows:

Hillel David, for appellant. Peter J. Lukasiewicz and Megan Shortreed, for respondent, Alan Bromstein.

[1] BY THE COURT: -- This is an appeal by the plaintiff from the order of the Honourable Mr. Justice Cumming [reported 1999 14802 (ON SC), 44 O.R. (3d) 535] striking out the statement of claim as against the respondent Alan Bromstein pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The court is divided. Abella J.A., dissenting, would dismiss the appeal for the reasons given by the motions judge which she adopts. The majority would allow the appeal and dismiss the motion before Cumming J. for the reasons that follow.

[3] The case against the defendant Bromstein is framed in malicious prosecution. The case is novel in that it is brought against a solicitor who did not institute the disciplinary proceedings against the plaintiff but took over the prosecution and conducted it thereafter on behalf of the Royal College of Dental Surgeons until its unsuccessful termination. However, novelty is not a bar to an action at the pleading stage. In the majority's view, the pleadings, if they can be proven, could constitute a case of malicious prosecution.

[4] Another claim asserted is that all the defendants, including Bromstein, conspired together to injure the plaintiff by unlawful means. Particulars are provided. This pleading should be allowed to stand.

[5] The majority has a major concern about the balance of the causes of action asserted. Some do not appear to be stand-alone causes of action but, as pleaded, they could well constitute constituent elements of the tort of malicious prosecution, i.e., breach of procedural fairness, abuse of power and intimidation. Others are merely pleadings of damages. However, while the pleadings are poorly drawn, it is apparent that yet another amendment is unlikely to clarify the issues. The plaintiff should be left to stew in his pleadings such as they are.

[6] In the majority's view, the matter should proceed to trial. It will be up to the trial judge to assess the merits of the various claims in the light of the evidence.

[7] For these reasons, the appeal is allowed, the order of Cumming J. is set aside and the motion is dismissed. The appellant is entitled to his costs here and below.